Summary
holding that appellate court would not consider issues raised for the first time in the appeal of the denial of a postconviction motion
Summary of this case from Finney v. StateOpinion
No. 2D99-4519.
Opinion Filed September 1, 2000.
Appeal pursuant to Fla.R.App.P. 9.140(i) from the Circuit Court for Polk County; Dennis P. Maloney, Judge.
ORDER
This court hereby denies appellant's motion for rehearing in this case, and sua sponte withdraws its prior opinion filed March 24, 2000, and substitutes the attached opinion therefor.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
JAMES BIRKHOLD, CLERK
cc: Errol D. Brooks Attorney General, Tampa
Errol D. Brooks appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Brooks asserts that his sentences in case numbers 91-3635 and 91-3539 are illegal because the trial court failed to orally pronounce his sentences as a habitual offender and, therefore, the written sentence fails to comport to the oral pronouncement at sentencing. We affirm in part as to case number 91-3635, reverse in part as to case number 91-3539, and remand for further proceedings.
A claim that the written sentence fails to comport with the court's oral pronouncement at sentencing is cognizable in a motion to correct illegal sentence. See Dawson-Knapp v. State, 698 So.2d 266 (Fla. 2d DCA 1997). We affirm the trial court's denial of relief on this issue as to case number 91-3635 because the sentencing hearing transcript demonstrates on page twenty-six that the trial court, after making sufficient findings, properly pronounced that Brooks would serve this life sentence with habitual offender sanctions.
However, in case number 91-3539, the court failed to pronounce Brooks a habitual felony offender. Brooks' sentence is not an illegal sentence because it is not beyond the statutory maximum. Nonetheless, when a discrepancy exists between the oral pronouncement and the written sentence, remand is required to correct the error. See Dawson-Knapp, 698 So.2d at 266. Therefore, this court remands to the trial court to strike the habitual offender sanction from Brooks' written sentence.
In his motion for rehearing, Brooks raised several new issues. If Brooks wants these issues considered, he must file a motion in the trial court; these issues may not be considered for the first time on appeal.
Accordingly, we remand this cause to the trial court with directions to conform Brooks' sentence in case number 91-3539 to the oral pronouncement of the court.
Affirmed in part, reversed in part, and remanded for further proceedings.
PATTERSON, C.J., and PARKER and CASANUEVA, JJ., Concur.